Law & Society Blog

Preventive and retributive theories frame the issue of crime and punishment differently. Certain conduct or states of affairs are labeled a threat, in order to justify protective measures. Framing the state of affairs as the result of a culpable action, however, means disapproval of that action. Our relative freedom in framing or modeling states of affairs is known in classical rhetoric as stasis or the “focal point” of a dispute. Notably, the focal point of a dispute is ordinarily not established by the original assertion but the response to it. Thus, responding to crime instrumentally, frames it as damage done to certain material or immaterial goods. In contrast, responding to crime by affirming the validity of the norm that the crime negates, frames it as an act of normative rebellion against the prevailing order. The response “You are wrong. The norm is still valid” only makes sense if we understand the crime as an assertion “This norm is invalid.” In that manner, our response to the crime changes the meaning of the crime with ex post effect. Through our response we change what happened in the past. One of the stock criticisms of retributivism has always been that “we can’t change the past,” thus, looking to the future consequences of our reaction to the crime is the preferred source of legitimacy. But while we indeed can’t change a past state of affairs, we can change the meaning of what happened in the past, because past, present, and future are temporal categories processed by the mind (as thoughts) and by social systems (as communications) in the present (and only in the present).

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